Commonwealth of Virginia v Quenton Bryant Anderson

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Elder and Annunziata
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. 	Record No. 1334-00-2 	JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 31, 2000
QUENTON BRYANT ANDERSON
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
H. Selwyn Smith, Judge Designate
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellant.
Janice L. Redinger (Janice L. Redinger,
P.L.C., on brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The Commonwealth appeals from the pretrial order of the
Circuit Court of Albemarle County, suppressing evidence found
during a search of Anderson's person. 	We find that the trial
court erroneously suppressed the evidence, and accordingly, we
reverse.
FACTS
On September 27, 1999, Albemarle County Police Officer John
McKay was on uniformed patrol in a marked police car. 	Officer
McKay observed a vehicle coming toward him on a two-lane highway
fail to dim its headlights. 	Based upon this inaction on the

part of the driver, which constitutes a traffic offense under
Code § 46.2-1034, the officer stopped the vehicle. 	Anderson was
the driver and could produce neither a driver's license nor any
other identification for the officer. 	Furthermore, although
Anderson was driving a rental car, neither he nor his passenger
was listed in the rental agreement. 	The officer concluded that
Anderson was unlikely to appear on a summons and decided that
Anderson's arrest was warranted. 	Marijuana was discovered in
the course of a full search the officer conducted immediately
prior to placing Anderson under arrest.
At the motion to suppress hearing, the trial judge
concluded that the arrest was valid. 	The court reasoned that
although officers customarily issue a summons for a traffic
violation rather than arrest the suspect, "the right does exist
for [the officer] to arrest . . . for driving without an
operator's license and that made the arrest valid."
Notwithstanding its finding that the arrest was valid, the trial
court found that the full search incident to the arrest was not,
holding that once the officer determined Anderson was unarmed,
the search had to be terminated. 	Accordingly, the trial court
suppressed the marijuana evidence found in the course of the
search. 	It is from this ruling that the Commonwealth now
appeals.
- 2 -

ANALYSIS
We view the evidence in the light most favorable to the
defendant, the prevailing party below, granting him all
reasonable inferences which flow from the evidence. 	See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). 	The trial court's decision "will not be
disturbed unless it is plainly wrong or without evidence to
support it." 	Commonwealth v. Thomas, 23 Va. App. 598, 609, 478
S.E.2d 715, 720 (1996).
However, when analyzing a Fourth Amendment issue,
"'[u]ltimate questions of reasonable suspicion and probable
cause' . . . involve questions of both law and fact and are
reviewed de novo on appeal." 	McGee v. Commonwealth, 25 Va. App.
193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (quoting
Ornelas v. United States, 517 U.S. 690, 699 (1996)); see Bass v.
Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924 (2000). 	"In
performing such analysis, we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them and we give due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers." 	McGee, 25 Va. App. at 198, 487
S.E.2d at 261 (citing Ornelas, 517 U.S. at 699-703).
Under the Fourth Amendment, an officer may make a
warrantless arrest when the officer has probable cause to
believe that an individual has committed an offense. 	See
- 3 -

generally United States v. Watson, 423 U.S. 411, 415-24 (1976).
"[P]robable cause exists when the facts and circumstances within
the officer's knowledge, and of which he has reasonably
trustworthy information, alone are sufficient to warrant a
person of reasonable caution to believe that an offense has been
or is being committed." 	Taylor v. Commonwealth, 222 Va. 816,
820, 284 S.E.2d 833, 836 (1981).
Virginia law directs an officer to issue a summons, rather
than make a full custodial arrest, after detaining an individual
for a misdemeanor traffic offense. 	See Code § 46.2-936
("Whenever any person is detained by or in the custody of an
arresting officer, including an arrest on a warrant, for a
violation of any provision of this title punishable as a
misdemeanor, the arresting officer shall, except as otherwise
provided in § 46.2-940, . . . issue a summons . . . .").
However, an exception exists whereby under certain
circumstances, the officer is permitted to make a full custodial
arrest. 	See Code § 46.2-940 ("If any person is: . . . (ii)
believed by the arresting officer to be likely to disregard a
summons issued under § 46.2-936 . . . the arresting officer
shall promptly take him before a magistrate . . . .").
In this case, the trial court found that the arrest of
Anderson for driving without a license, a Class 2 misdemeanor
under Code § 46.2-300, was valid, and evidence was introduced at
the hearing that supports this finding. 	Officer McKay observed
- 4 -

Anderson driving and stopped him for a traffic offense.
Anderson admitted to the officer that he did not have a valid
operator's license, or any form of identification. 	The officer
could not verify the defendant's identity through any reliable
means. 	In addition, Anderson was driving a rental car, rented
by an absent third party, and McKay did not have sufficient
information to determine whether the vehicle had been stolen or
not. 	Based upon what he knew, the officer reasonably believed
that it was unlikely Anderson would appear in court had McKay
released him on a summons. 	On that ground, Anderson's arrest
was lawful under the Fourth Amendment, and under Code
§§ 46.2-936, -940.
Once a proper full custodial arrest is made, the officer
may conduct a full search of the suspect, even if the officer
does not believe that the suspect is armed or is concealing
evidence. 	See United States v. Robinson, 414 U.S. 218, 235-36
(1973) ("It is the fact of the lawful arrest which establishes
the authority to search, and we hold that in the case of a
lawful custodial arrest a full search of the person is not only
an exception to the warrant requirement of the Fourth Amendment,
but is also a 'reasonable' search under that Amendment."); see
also Gustafson v. Florida, 414 U.S. 260, 263-66 (1973).
Additionally, the arrest does not have to be made prior to
the full search, so long as the arrest is lawful and the actual
arrest follows shortly after the search. 	See Rawlings v.
- 5 -

Kentucky, 448 U.S. 98, 111 (1980); United States v. Miller, 925
F.2d 695, 698 (4th Cir. 1991).
Finally, the officer can seize any contraband found during
the search incident to arrest, irrespective of whether the
evidence is related to the crime that gave rise to the initial
arrest. 	See Harris v. United States, 331 U.S. 145, 154-55
(1947) ("Nothing in the decisions of this Court gives support to
the suggestion that under such circumstances the law enforcement
officials must impotently stand aside and refrain from seizing
such contraband material.").
Applying these principles to the facts of this case, we
find that the officer was permitted to conduct a full search
incident to Anderson's arrest. 	During the search, the officer
discovered marijuana which he had authority to seize as
"contraband." 	See Robinson, 414 U.S. at 236 (where heroin was
found during a search incident to an arrest for driving after
the defendant's license had been revoked, the officer "was
entitled to seize [the heroin] as 'fruits, instrumentalities, or
contraband' probative of criminal conduct"); see also Gustafson,
414 U.S. at 266. 	Therefore, the trial court erred in
suppressing the evidence of the marijuana. 	Its ruling on this
matter is accordingly reversed.
Reversed.
- 6 -